Despite Mild Dementia, Appellate Division Found Decedent Fully Cognizant

In the Matter of the Estate of Nella Tornaben, New Jersey Superior Court, App. Div., Docket No. A-5181-14T4 (Sept. 27, 2016).

On June 28, 2013, the surrogate of Essex County admitted the December 7, 2011, will of decedent Nella Tornaben to probate.  The surrogate issued Letters of Testamentary to Nella’s nephew and her accountant who were appointed as co-executors of the estate.  The will distributed the estate among six beneficiaries, including the nephew.

The plaintiffs – Nella’s “Italian relatives”- filed a complaint alleging lack of testamentary capacity and that the will was the product of undue influence.  The Italian relatives reside in Italy and they are the children of Nella’s late brother.  The Probate Court dismissed the complaint on summary judgment.  The Appellate Division affirmed.

As to the claim of lack of testamentary capacity, the Appellate Division agreed with the trial court that no reasonable juror could find that the plaintiffs proved by clear and convincing evidence that Nella lacked testamentary capacity.  Specifically, the appeals court found that the certifications presented by each side clearly revealed that Nella was fully cognizant of the nature and location of her assets, despite the noted mild dementia.  In addition, the court found that the hospital records relating to her November 7-9, 2011 admission failed to establish her lack of capacity by clear and convincing evidence.  Furthermore, the records showed Nella’s unwavering desire to exclude her “Italian relatives” from her will.

As to the claim for undue influence, the Appellate Division agreed with the trial court’s finding that the certifications of the nephew and accountant were trustworthy.  For instance, the nephew corroborated the accountant’s recitation of events, and the scrivener, William Varian, Esq., confirmed that Nella knew exactly where her accounts were located and she explained to him the nature of each account.  Moreover, the scrivener testified that there was “absolutely no doubt in [his] mind that [Nella] was well aware of the size and composition of her estate.” Id. at *9.  Thus, the appeals court found nothing in the record to indicate that the nephew overcame Nella’s free will and caused her to do something she did not want to do.

The Appellate Division also found that the trial court did not abuse its discretion in discounting the plaintiffs’ expert opinion as a net opinion.  Plaintiffs’ expert testified that he had no information to indicate that Nella did not understand she was executing a will and he further testified that there was no information that Nella was not able to comprehend what property she had.  Notably, the appeals court expressed the expert’s report “can best be described as conclusory.”

In sum, the Appellate Division affirmed the trial court’s dismissal of the complaint on summary judgment and found the court did not abuse its discretion in discounting plaintiffs’ expert opinion as a net opinion.